2014 NBCA 23, 2014 NBCA 23

COURT OF APPEAL OF NEW BRUNSWICK 128-13-CA AARON RICHARD ROACH APPELLANT AARON RICHARD ROACH APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Roach v. R., 2014 NBCA 23 Roach c.

R., 2014 NBCA 23 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Quigg The Honourable Justice Green CORAM : l’honorable juge en chef Drapeau l’honorable juge Quigg l’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: November 6, 2013 Appel d’une décision de la Cour du Banc de la Reine : le 6 novembre 2013 History of Case: Historique de la cause : Decision under appeal: 2013 NBQB 360 Décision frappée d’appel : 2013 NBBR 360 Preliminary or incidental proceedings: [2013] N.B.J.

No. 420 Procédures préliminaires ou accessoires : [2013] A.N.-B. n o 420 Appeal heard: February 17, 2014 Appel entendu : le 17 février 2014 Judgment rendered: April 17, 2014 Jugement rendu : le 17 avril 2014

Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : l’honorable juge en chef Drapeau Concurred in by: The Honourable Justice Quigg The Honourable Justice Green Souscrivent aux motifs : l’honorable juge Quigg l’honorable juge Green Counsel at hearing: For the appellant: George E. Kalinowski For the respondent: David W. Schermbrucker Avocats à l’audience : Pour l’appelant : George E. Kalinowski Pour l’intimée : David W. Schermbrucker THE COURT The appeal is dismissed.

A conviction for an indictable offence, which is appealable as of right, may not be quashed by way of an order of certiorari . The judgment of the Court was delivered by DRAPEAU, C.J.N.B. I. Introduction [ 1 ] Upon his plea of guilty, the appellant was convicted in Provincial Court of an indictable offence under the Controlled Drugs and Substances Act , S.C. 1996 c. 19. All agree he had an absolute right of appeal against conviction on the ground that the judge lacked jurisdiction to convict because, prior to plea, the underlying charge had been dismissed for want of prosecution.

The appellant did not exercise his right of appeal. However, years after the time for appeal had passed, he applied to the Court of Queen's Bench for an order of certiorari removing and quashing his conviction on the aforementioned jurisdictional ground. [ 2 ]

Section 776 (

b) of the Criminal Code of Canada states that no conviction or order shall be removed by certiorari where the defendant appeared and pleaded, the merits were tried and an appeal could have been taken, but was

not. The appellant submits s. 776(

b) has no application where, as here, the judge was without jurisdiction to convict. [3] Thus, the disposition of the present appeal turns on the answer to this very narrow question:can a conviction in the Provincial Court for an indictable offence, that is appealable as of right, be quashed by way of an order ofcertiorari? In dismissing the appellant’s application, a judge of the Court of Queen’s Bench, in a decision reported at 2013 NBQB 360,held s. 776(

b) deprived her of jurisdiction to make such an order. Applying R. v. Sanders, (SCC), [1970] S.C.R. 109,[1969] S.C.J. No. 71 (QL), as is my duty, I respectfully agree. II. Context [4] Following his arrest in early 2008, the appellant retained Ronald E. Morris, Q.C., to representhim in connection with two marihuana-related indictable charges under the Controlled Drugs and Substances Act, one of production (s.7(1)), the other of possession for the purpose of trafficking (more than 3 kilograms; s. 5(2)).

It was alleged in the Information that theoffences were committed between July 6, 2007 and January 22, 2008. [5] In 2008, the appellant appeared in Provincial Court, either alone or with Mr. Morris, on severaloccasions, including July 16, when he elected to be tried in Provincial Court and pled not guilty on both charges, and October 20, 2008.In the course of the last-mentioned appearance, the judge adjourned proceedings to February 10, 2009. [6] On February 10, 2009, neither the appellant nor Mr. Morris was personally present in court.Another lawyer, Howard Peters, appeared as Mr.

Morris’ agent and filed a Designation of Counsel in purported furtherance of s.650.01(1). The document in question identified Mr. Morris as the appellant’s designated counsel and was signed by the appellant, but notMr. Morris. Mr. Peters signed “for” Mr. Morris. The case was set over to July 7, 2009.

Importantly, the appellant contends, and therespondent concedes that: (1) jurisdiction over the appellant was lost on February 10, 2009 because he did not appear personally orthrough a properly designated counsel; (2) jurisdiction over the appellant was not regained and no warrant or summons was issued withinthree months after the loss of jurisdiction (s. 485(2)); and (3) as a result, and pursuant to s. 485(3), the proceedings on the charge ofproduction of marihuana were deemed to be dismissed for want of prosecution as of May 11, 2009. [7] Be that as it may, on July 7, 2009, the appellant appeared personally with Mr.

Morris inProvincial Court. At that time, the appellant changed his plea to guilty on the charge of production of marihuana. It seems no one wasalive to the fact that the charge in question had been previously dismissed by operation of law. At any rate, upon being satisfied thechange of plea was voluntary and that the appellant understood not only the import of the plea of guilty, but that the court was not boundby any agreement between him and the prosecutor, the presiding judge accepted the new plea, entered a conviction and scheduled asentencing hearing for September 11, 2009.

The charge of possession of marihuana for the purpose of trafficking was withdrawn. [8] On September 11, 2009, the appellant was sentenced to imprisonment for two years.

The judgealso issued a ten-year weapons prohibition order (s. 109) and a DNA order (s. 487.051), both of which remain in effect. [9] Well after his release from jail, more precisely on December 20, 2012, the appellant filed anapplication in the Court of Queen’s Bench for an order of certiorari, seeking to quash his conviction on the ground that the ProvincialCourt lacked jurisdiction to take his plea of guilty and act upon same by convicting him, the underlying charge having been previouslydismissed for want of prosecution pursuant to s. 485(3).

Following two days of hearing, the last in June of 2013, a judge of the Court ofQueen’s Bench dismissed the application. In her November 6, 2013 reasons for decision, the judge noted “[c]riminal cases need finality”and held “the Court cannot exercise a ‘concurrent jurisdiction’ to order certiorari when an appeal was available”. She went on to observethat an appeal “may still be available” (para. 13). [10] On November 21, 2013, the appellant applied for an extension of time to file a Notice of Appealfrom his conviction. On January 8, 2014, Richard J.A., dismissed the motion (see [2013] N.B.J. No. 420 (C.A.) (QL)).

His reasons fordecision bear reproducing, if only for contextualization purposes: In R. v. Trites, 2011 NBCA 5, [2011] N.B.J. No. 12 (QL), this Court held that “it is only the designated counsel who can appear for an

accused pursuant to s. 650.01” (para. 15). Invoking s. 485 of the Criminal Code, Mr. Roach claims that because neither he, nor the counsel designated under s. 650.01, was presentin court on February 9, 2009, when the matter was adjourned, the court lost jurisdiction. Mr. Roach claims jurisdiction was not regained.Referring to s. 485(3), he argues that, where neither a summons nor a warrant was issued within three months, the proceeding is deemedto have been dismissed for want of prosecution. Thus, he claims the Provincial Court judge had no jurisdiction to proceed when he tookhis plea on July 7, 2009. Mr.

Roach did not appeal his conviction within the time prescribed. It was only in the late fall of 2012 that he became aware of thisCourt’s decision in Trites. Following that, he sought to have his conviction quashed by applying for judicial review, but his applicationwas dismissed. He now seeks an extension of time to appeal. […] Mr. Roach candidly admits he did not have any intention to appeal within the time prescribed. In my view, that concession isdeterminative of his application for an extension of time. Mr. Roach was “out of the system” once he did not appeal his conviction and the time for doing so lapsed.

He cannot now be broughtback into the system because this Court subsequently clarified the law by limiting a designation of counsel to the counsel expresslynamed in the designation. As the Supreme Court has stated, there is a need for finality in the process and it is generally not in theinterests of justice for matters to be re-opened long after they have been concluded. This is so, even in cases where the law under whichthe convicted person is subsequently declared invalid: R. v. Wigman, (SCC), [1987] 1 S.C.R. 246, [1987] S.C.J. No. 13(QL).

As the Supreme Court stated: The appropriate test is whether or not the accused is still in the judicial system. As expressed in the Crown's factum, this test affords ameans of striking a balance between the “wholly impractical dream of providing perfect justice to all those convicted under the overruledauthority and the practical necessity of having some finality in the criminal process”.

Finality in criminal proceedings is of the utmostimportance but the need for finality is adequately served by the normal operation of res judicata: a matter once finally judicially decidedcannot be relitigated. [para. 21] If Mr.

Roach had had a bona fide intention to appeal within the time prescribed and had he been able to satisfactorily explain the delay, itmight be arguable that he was technically still “in the system.” However, as it is, he did not intend to appeal until after he learned of thisCourt’s denunciation in Trites of the practice pursuant to which counsel designated under s. 650.01 were using agents to attend in courtwithout the presence of the accused. In these circumstances, Mr. Roach was clearly “out of the system” and it is not in the interests ofjustice that he be brought back in. It is for these reasons that Mr.

Roach’s application for an extension of time to appeal was dismissed. [paras. 3-5, and 7-10] [Emphasis in original.] [11] Justice Richard’s decision is not under challenge. [12] The present appeal is from the dismissal in the Court of Queen’s Bench of the application for anorder of certiorari. The appellant contends the application judge erred in law in finding certiorari was not available to review and quashhis conviction and that his only remedy was by way of appeal. III. Pertinent legislation The key provisions of the Criminal Code are reproduced in Appendix A. IV. Analysis and Decision

[13] In his application to the Court of Queen’s Bench, the appellant sought an order of certiorari: (1)quashing his conviction for the offence of production of marihuana, as particularized in the underlying charging document (Information08580905); and (2) dismissing that Information “for want of prosecution”. In the affidavit filed in support of his application in the courtbelow, the appellant does not claim he is innocent of the charge to which he pled guilty and for which he stands convicted.

Rather, andas mentioned, the appellant contends, and the respondent concedes, the Provincial Court was without jurisdiction to enter a conviction,the underlying proceedings having been previously dismissed for want of prosecution pursuant to s. 485(3). Needless to say, therespondent’s concession on point would not have been made, let alone accepted, if the appellant had appeared in Provincial Court in thecourse of proceedings pertaining to the underlying charge before the expiration of the three-month limitation period set by s. 485(2).

Hadthat occurred, jurisdiction over the appellant would have been regained (see R. v. Fogarty, [1988] N.S.J. No. 436 (C.A.) (QL)). [14] The parties frame the issue on appeal as follows: did the application judge err in law in findings. 776(

b) prevents the removal by certiorari of the appellant’s conviction? Recall that s. 776(

b) precludes the removal of a conviction bycertiorari where the “defendant appeared and pleaded and the merits were tried, and an appeal might have been taken, but the defendantdid not appeal”. [15] The appellant accepts that, on a literal reading of s. 776(b), each of its conditions precedent ismet in the case at hand: (1) the remedy sought by the application in first instance was the removal and quashing of the appellant’sconviction; (2) the appellant appeared in Provincial Court and pleaded. His plea of guilty resulted in a trial of the merits (see R. v.Kennedy, [1957] O.J. No. 332 (C.A.) (QL); R. v.

Williams, [1966] B.C.J. No. 52 (S.C.) (QL); Regina v. Gallicano, [1978] B.C.J. No.1152 (C.A.) (QL); R. v. Beaupre, [1981] M.J. No. 21 (C.A.) (QL); and LeBlanc v. New Brunswick (Attorney General), 2006 NBQB 198,[2006] N.B.J. No. 235 (QL), McLellan J.); and (3) an appeal could have been taken against conviction. In that regard, it bears repeatingthat the appellant had an absolute right of appeal against conviction on the ground that the Provincial Court Judge could not, as a matterof law, convict him on a charge that had been previously dismissed.

In other words, leave to appeal was not required (see s. 675(1)(a)(i)).Those being the circumstances, I need not decide whether the Court should follow decisions that exclude from the purview of s. 776convictions and orders from which an appeal can only be taken with leave (see R. v. A.P.W., [1976] M.J. No. 72 (C.A.) (QL)). I wouldsimply note that, although contestable on the grounds that it yields a seemingly illogical legislative scheme for the judicial review ofconvictions, this

interpretation has, arguably, the merit of reconciling the ruling in Sanders with what the appellant contends, perhapsjustifiably, is the implicit, if not explicit, preservation through ss. 777, 778, 781 and 783 of the certiorari option for conviction review.

Then again, that option may have been preserved solely with a view to its application to convictions (under the Criminal Code or someother statute) in circumstances, present or future, where no appeal is provided, with or without leave. [16] The appellant’s contention is that s. 776(b), like its predecessor provisions, has no application toconvictions entered, as here, by a court acting without, or in excess of, jurisdiction.

He cites numerous cases in support of thatproposition and points to ss. 777, 778, 781 and 783 as indicators of Parliament’s intention to leave open the door to conviction challengesby way of certiorari. Those provisions may be described in thumbnail fashion as follows: (1) s. 777 prescribes the circumstances thatpreclude the invalidation for irregularity, informality or insufficiency of a “conviction […] on being removed by certiorari”.

One ofthose circumstances is “jurisdiction to make the conviction”; (2) s. 778 offers examples of irregularities captured by s. 777; (3) s. 781states no conviction may be quashed or set aside because of lack of proof of certain proclamations, orders, rules, regulations and by-laws; and (4) s. 783 provides that, on an application to quash a conviction in Provincial Court “on the ground that he exceeded hisjurisdiction”, the reviewing court or judge may bar consequential civil proceedings against the convicting judge and others. [17] Prior to Sanders, the appellant’s argument might well have carried the day, at least in thisProvince.

That proposition appears well-founded in light of The King v. O’Brien: Ex parte Roy (1907), (NB KB), 38N.B.R. 109 (C.A.); The King v. Slipp: Ex parte Monahan (1928), (NB CA), 54 N.B.R. 550 (C.A.); and The King v.McLatchy; Ex parte Goulette (1932), (NB CA), 5 M.P.R. 257 (N.B.C.A.), among other cases directly on point. [18] However, in Sanders, a five-judge majority rejected the view that s. 682(b) (now s. 776(b))applied only where the court had jurisdiction to convict or make the impugned order. In the majority’s view, s. 682(

b) applied in anysituation where, but for that provision’s operation, the jurisdiction of the court making the contested disposition might have beenchallenged on certiorari. The critical excerpts from the majority judgment read as follows: It is, however contended, by the appellant that it cannot be said that “the merits were tried”, as required by s. 682(b), if the appellant didnot receive the seven days’ clear notice provided for in s. 662(1)(

b) because, in that event, the court would lack jurisdiction to hear thematter, and so there would be no trial at all. If it can be said that those words can only be applicable in a case where the court had jurisdiction, s. 682(

b) ceases to have any realmeaning. The writ of certiorari is primarily concerned with the matter of jurisdiction of an inferior court. In R. v. Nat Bell Liquors,Limited [ (UK JCPC), [1922] 2 A.C. 128, 37 C.C.C. 129, [1922] 2 W.W.R. 30, 65 D.L.R. 1.], Lord Sumner, at the foot

of page 154, describes the object of a writ of certiorari as follows: "The object is to examine the proceedings in the inferior Court to see whether its order has been made within its jurisdiction." If the object of certiorari is to see whether an order has been made within the jurisdiction of an inferior court, and if certiorari is still available, notwithstanding s. 682( b ), in any case in which the court lacked jurisdiction, then it would appear that the provision accomplished very little. If the court had jurisdiction, certiorari would not lie, altogether apart from s. 682.

If the court lacked jurisdiction, then, if this submission is correct, certiorari is available despite s. 682. In my opinion the

section was intended to apply, and by its terms does apply in a situation where, in the absence of the section, the jurisdiction of the court might have been questioned on certiorari. If the accused has appeared before the inferior court, and has entered a plea, and if, thereafter, the court has proceeded to try the issue raised by that plea upon the merits, then the accused, if he wishes to attempt to set aside the court's decision, must, if he is given by law a right to appeal, seek his redress by way of appeal only . The intention of this

section was to preclude the co-existence of two remedies in those cases to which it applies, and to compel resort to appeal procedures where they are available. I am not overlooking the fact that certiorari is also a remedy in a case where there is a failure to observe the law in the exercise of jurisdiction as well as in a case where there has been an excess of jurisdiction.

Lord Sumner, in the Nat Bell case, supra , referring to the supervision of a superior court over an inferior tribunal, said, at p. 156: That supervision goes to two points: one is the area of inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise.

There is, however, nothing in the wording of s. 682 which purports to limit its application only to cases in which the proceedings before the inferior court are being attacked on the basis of failure to observe the law in the exercise of jurisdiction, e.g., error of law on the face of the record. By its terms it applies, in any case falling within its provisions, to any attempt to remove a conviction or order by certiorari. […]

Section 682 of the Criminal Code is a part of a complete code dealing with criminal law, and is contained in

Part XXIII wherein Parliament has legislated respecting the application, in criminal proceedings, of the extraordinary remedies of certiorari, habeas corpus, mandamus and prohibition. It is not a finality clause. It does not purport to enable an inferior tribunal to exceed its jurisdiction, or to make its decision as to its own jurisdiction final. What it does say is that if a person has taken an appeal from a decision, he shall not thereafter be entitled to certiorari.

It also says that if a person pleads, and the case is tried on the merits, then, if there is a right to appeal that decision, which is not exercised, he shall not, thereafter, be entitled to certiorari. A person who challenges the jurisdiction of a tribunal which proposes to try him can take objection to the jurisdiction and refuse to plead, in which event certiorari is available to him. But, if he does plead, and the case then proceeds to a trial of the merits, and if he has a right of appeal, his challenge to the jurisdiction can then only be made by way of appeal .

There can be no doubt of the power of Parliament thus to limit the exercise of an extraordinary remedy, and it has done so in clear terms. Nor is there room here for implying a presumed intention that certiorari be available to compel an inferior tribunal to keep within its powers, because the obvious intention of s. 682 is that it is the procedure by way of appeal, and not certiorari, that, where available, should be used for that purpose. […] My

interpretation of s. 682 does not necessarily involve the conclusion that Parliament intended that that which was a nullity should be validated. Even proceedings which are a nullity, as in the Crane case, can only be shown to have been a nullity by means of some procedure before a higher court.

Parliament can prescribe the nature of such a procedure, and, in my view, in s. 682 has stated, in clear terms, that, in any case falling within its provisions, that procedure must be by way of appeal, and by that means only . [pages 140, 141, 147, and 148] [Emphasis added.] [ 19 ] When Sanders was decided, provisions identical in all material respects to ss. 777, 778, 781 and 783 formed part of the statutory landscape (see Gary P. Rodrigues, ed., Crankshaw’s Criminal Code of Canada , loose-leaf, 9 th ed., vol. 5 (Scarborough, Ont: Carswell, 1993), at 26-1 to 26-50).

Indeed, s. 689, now s. 783, was explicitly mentioned in two of the dissenting opinions (Cartwright C.J.C., and Pigeon J.), and it was applied by all dissenting justices to justify an order precluding civil proceedings based upon the Magistrate’s lack of jurisdiction to make the preventive detention order at issue in that case. Yet, none of those

predecessor provisions persuaded the majority to join with the minority in espousing the view that s. 682, now s. 776, did not take awaythe right to certiorari where an inferior court has acted without jurisdiction in convicting or making the impugned order. For illustrationsof the application of Sanders in the context of challenges to conviction, see Regina v. Brown, [1970] O.J. No. 1734 (C.A.) (QL) (s. 682,now s. 776, covered a conviction that was a nullity by reason of lack of jurisdiction in the convicting court); R. v. Mearns, (BC CA), [1970] B.C.J.

No. 610 (C.A.) (QL) (the same provision barred certiorari proceedings where jurisdiction was lost due tothe improper refusal of an adjournment); R. v. Stewart, [1979] B.C.J. No. 2047 (C.A.) (QL) (the Information failed to disclose an offenceknown to law; certiorari proceedings excluded by s. 710, now s. 776); and R. v.

Beaupre (s. 710(b), now s. 776(b), precluded certiorariproceedings to quash a conviction under an ultra vires provision). [20] As a result of Sanders, s. 776 must be interpreted as precluding the removal by certiorari of aconviction, such as the one at issue here, made without or in excess of jurisdiction by a Provincial Court judge in either of the followingtwo scenarios: (1) an appeal was taken against conviction (s. 776(a)); (2) an appeal was not taken, but might have been, and the meritswere tried after the defendant appeared and pleaded. The case at hand falls squarely within the second scenario. V.

Conclusion and Disposition [21] The parties agree the Provincial Court Judge was without jurisdiction to take the appellant’sguilty plea and to convict him of the underlying indictable charge (production of marihuana). However, no appeal was taken againstconviction within the time prescribed, and the present proceedings are concerned solely with the sustainability of a decision in the Courtof Queen’s Bench dismissing the appellant’s application for the removal by certiorari of his conviction. [22] In my view, that application was rightly dismissed on the basis that s. 776(

b) of the CriminalCode is a complete bar. It has been authoritatively decided by the Supreme Court of Canada in Sanders that s. 776 precludes the removalby certiorari of a conviction, such as the one at issue here, made without or in excess of jurisdiction by a Provincial Court judge in eitherof the following two scenarios: (1) an appeal was taken against conviction (s. 776(a)); (2) an appeal was not taken, but might have been,and the merits were tried after the defendant appeared and pleaded (s. 776(b)).

As mentioned, the case at hand falls squarely within thesecond scenario. [23] That being so, I would dismiss the appeal. ___________________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK WE CONCUR: _______________________________ KATHLEEN A. QUIGG, J.A. _______________________________ BRADLEY V. GREEN, J.A.